Malone v Kelly's (Coleambally) Pty Limited S126/2001 [2002] HCATrans 185 (19 April 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S126 of 2001

B e t w e e n -

KAYLENE MICHELLE MALONE

Applicant

and

KELLY'S (COLEAMBALLY) PTY LIMITED

Respondent

Application for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 APRIL 2002, AT 11.07 AM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC: May it please your Honours, I appear with my learned friend, MR D.R.J. TOOMEY, for the applicant. (instructed by Commins Hendriks)

MR J.D. HISLOP, QC: May it please the Court, I appear with my learned friend, MR G.A. SEIB, for the respondent. (instructed by McCulloch & Buggy)

GLEESON CJ: Yes, Mr Toomey.

MR TOOMEY: Thank you, your Honours. Your Honours, this was a case about a dog in a street in a country town, which may not endear it to your Honours. It is a case, in our respectful submission, in which the Court of Appeal intervened after a finding on questions of fact at first instance in a wholly impermissible way.

The case was heard before his Honour Judge Puckeridge in the District Court at Wagga. It was one of a list of 109 cases. His Honour made findings of fact and the findings of fact essentially were that the defendant - the plaintiff's employer - being in a position to know of the constant presence outside the building and the building next door of a dog which was owned by the pharmacist who ran the place next door, had done nothing to protect the plaintiff employee whose employment duties required her to carry groceries from the supermarket to people's cars.

The basis upon which their Honours in the Court of Appeal differed from the learned trial judge appears to be on a simple question of fact which was crucial to the finding and which was open to his Honour and, in our respectful submission, ought never to have been interfered with. If I could hand to your Honours a short precis of the evidence - and it is short because the evidence in the case was very short - together with a sheet simply setting out his Honour's findings of fact.

GLEESON CJ: Thank you.

CALLINAN J: Mr Toomey, at page 27 Justice Ipp sets out the findings of negligence. Are they correct? You do not suggest that his Honour has not stated them correctly?

MR TOOMEY: With respect, your Honour, they are correct, although (a), the warning question, was irrelevant because the plaintiff knew of the dog being generally there and knew on this occasion that the dog was there.

GLEESON CJ: It is it right that Judge Puckeridge found that there was negligence in not warning that the dog might wander?

MR TOOMEY: Yes, your Honour, he did.

GLEESON CJ: Was there any evidence that there was no such warning?

MR TOOMEY: That is correct, your Honour.

CALLINAN J: The decision was erroneous then, was it not? Plainly, a finding was made that should not have been made. There was no evidentiary basis for it.

MR TOOMEY: Your Honour, I think, with respect, there were other facts and other findings of fact which justified the verdict.

GLEESON CJ: Did Judge Puckeridge say what the terms of the warning might be?

MR TOOMEY: No, your Honour.

CALLINAN J: "Watch out for that dog. It might wake up."

MR TOOMEY: "It might move into your path while you are carrying a box which might obscure your view."

GLEESON CJ: "Don't trip over a dog."

MR TOOMEY: That could have been it. Your Honours, I recognise the danger of the nature of the case but, with great respect to your Honours, it is no less serious for the plaintiff.

GLEESON CJ: No, quite. But it goes to a matter of principle concerning the intervention by an appellate court with a trial judge's findings of fact if there was one finding of fact that was clearly wrong, is it not?

MR TOOMEY: Yes.

CALLINAN J: It is $600,000 worth of seriousness to the defendant, also.

MR TOOMEY: Of course. With great respect, we do accept that and we do recognise that.

CALLINAN J: There is workers' compensation too.

MR TOOMEY: Yes, but if she was entitled to recover it in tort, then she should have recovered it in tort. First, I should just point out the matters of fact which we have set out on the sheet we have handed up. The evidence was it was part of the plaintiff's work to carry groceries. She carried groceries to the car, packed them. In respect of the dog:

"Whenever Mike [the pharmacist] was at work the dog was there ... [Mike] was [at work] all the times that I can remember that the shop was open. [The dog] would just lie in front of the, between the two shops, the supermarket and the chemist, and it would just lie between their doorways."

She then gave evidence as to how the accident happened:

"I served this lady, I filled a box of groceries ... I grabbed the groceries, the box, we walked out through the front door.

She glanced, she saw where the dog was.

I continued on talking to my lady to see where her car was, and then I just fell.

And at the bottom of the page:

Q: Were you aware what you fell over?

A: No, not until - till I got up again that I'd realised I'd fallen over the dog."

2.2 When the plaintiff first saw the dog it was lying against the wall of the pharmacy.

2.3 The line the plaintiff walked was "four or five feet out from the wall".

2.4 "As I came out the door it was laying there, it was still there to my knowledge, that's why I continued on, and then I just fell over it, it had obviously moved, got up and moved in front of me, sorry."

And the size of the box was as found by their Honours in the Court of Appeal and the evidence, with respect, justified, in fact, mandated this finding. It was about two feet wide by about eight inches deep and about 16 inches in depth from the plaintiff to the edge. It was described by her as an "apple box".

The factual contest at the trial was whether or not the carrying of the box would affect her vision so as to make it possible for the dog to move into her path without her seeing it. At page 4 of the application book at line 32, the learned trial judge said this:

The defendant submits that the evidence of the plaintiff does not show that her forward vision was affected by the carrying of the box, and although conceding that if vision was reduced in the circumstances there was a foreseeable risk of injury, submits that no reasonable means could have been adopted to prevent the injury other than instructions that no employee go outside the supermarket door.

CALLINAN J: Mr Toomey, I am sorry to interrupt, but is there any explanation why the case took so long to come to trial?

MR TOOMEY: Yes, your Honour. The plaintiff fell on her wrist. It was thought she had suffered a trivial injury. In fact, she had an.....fracture which developed into a condition called Kleinboch disease. She has finished up having some seven operations, has a substantially compromised right arm.

CALLINAN J: Did she have to get the limitations period extended?

MR TOOMEY: She did, your Honour, and that was done in 1994 or 1995. It had an effect, of course, for both parties on the quality of the evidence, but that is something that the plaintiff has to wear. The case had to be proved. That, your Honour, is the reason why the case took so long.

His Honour then went on:

Accepting as I do that the concession that there was a foreseeable risk of injury if employees in carrying the boxes which might reduce their forward vision could trip or fall over the dog is a proper concession, the question remains as to what reasonable means could have been adopted by the defendant to avoid that foreseeable risk.

In considering that matter I find that in carrying the box of purchases in front of her the plaintiff's forward vision was reduced. The defendant submits that there is no evidence that it was reduced, but the size of the box allows an inference to be drawn that her forward vision was reduced.

That was crucial to his Honour's finding and it was supported not only by the size of the box but by the fact that the plaintiff had given evidence that she saw the dog there, she turned, she walked four or five feet out from the wall against which the dog had been lying and she did not realise what she had fallen over until she got up. In other words, she had not seen the dog.

In the Court of Appeal, the judgment of Justice Ipp, which was the judgment, effectively, of the court, effectively was that the box had nothing to do with it. In other words, his Honour the learned trial judge found at first instance that she was precluded from the box - or at least hampered by the box from seeing the dog as it moved from its position of rest to the position in front of her where she tripped and fell over it. Mr Justice Ipp, at page 29, paragraph 13, said this:

The box was relatively small, and the respondent's vision would have been obstructed of course vertically downwards, and marginally forward. She noticed the dog when she came out of the supermarket, as I have mentioned, and she must have moved at least three to five metres before falling over the dog.

In the first place it is necessary to say that there was no evidence of any sort in the appeal book or in the evidence that she must have moved three to five metres.

CALLINAN J: Mr Toomey, is that not alternative basis? Had not his Honour earlier, on the previous page, rejected or said that there was no evidence that the appellant failed to instruct the respondent? That is at paragraph 10 on page 28.

MR TOOMEY: Yes, he did, your Honour.

CALLINAN J: So, what you have just put to us is really an alternative basis, is it not?

MR TOOMEY: Yes, it is, but may I say this to your Honours. If you look at grounds two and three which is set out by his Honour Justice Ipp on page 27, the Court of Appeal, in our respectful submission, in dealing with grounds (b) and (c) has elided warning and instructing because the plaintiff's evidence is that it was part of her work to help people carry groceries, she carried groceries and she packed them, and on the day in question she filled a box of groceries, grabbed the groceries, the box, and walked out the front door. In other words, what she was saying is, "What I was doing in the course of my duties was I was doing these things."

Now, one must, with respect, infer from that, in the absence of a single question directed to her to say that she was doing something contrary to her duties and in the absence of evidence which was available to the defendant of the proprietor of the supermarket - he was not called. So one must, in our respectful submission, accept that what she was doing was in the normal course of her duties. In those circumstances it is not - - -

CALLINAN J: Perhaps the manager was not available 18 years after it.

MR TOOMEY: Your Honour, he came to court and was sent away. He had to be brought down from Coleambally - your Honour will remember it was on circuit - and there was some arrangement made so the case went on on one day when he could come. He came; he was sent away. So, that was unchallenged evidence. The inference was that she was doing what she was supposed to be doing. The finding of his Honour was that doing that caused her view to be obstructed of a danger, that is, the movement of the dog into her path. But, first, in deference to what was raised by your Honour Justice Callinan, at page 28, paragraph 10:

The second and third grounds which I have mentioned, relate to a warning and instructions to the respondent in regard to how she was to carry the purchases out of the supermarket. There again, there was no evidence that the appellant failed to instruct the respondent, as alleged. Everything that I have said on this issue in regard to the first ground of warning applies equally to the second and third grounds.

With great respect, it did not. There was the evidence of what she was doing, the inference that she was doing it in the normal course of her duties, the fact that no question was put to her to suggest that she was not, and the failure of the defendant to call available evidence to say that what she was doing was not what she ought to have been doing.

GLEESON CJ: I am looking at paragraph 14 on the next page, Mr Toomey.

MR TOOMEY: Yes, your Honour.

GLEESON CJ: Justice Ipp drew an inference that she:

took her eyes off the dog and looked ahead where she believed the customer's car to be parked.

MR TOOMEY: Indeed.

GLEESON CJ: There is another possible inference. There are some people - I will not assign them to any particular gender, but there are some people who always look at the person they are talking to, and she was conversing with the customer. Another possible inference is that she was looking at the customer.

MR TOOMEY: Indeed, your Honour, it is, and it is an inference that at some stage she would have to communicate with the customer to find out where the car was to which she had to carry the groceries. In other words, it was readily foreseeable that there might be an inadvertent lack of attention as she came out the door, "Where is your car?"

GLEESON CJ: I think the evidence was, according to this, she was asking the customer. She was chatting to the customer and asking her about where the car was parked at the time she tripped over the dog.

MR TOOMEY: Your Honour, there is, in the summary of evidence, this line:

I glanced as I went out -

that is to see where the dog was.

I continued on talking to my lady to see where her car was, and then I just fell -

So that inference was there but, in our respectful submission, it ought not to have helped the defendant because that was - - -

CALLINAN J: Well, if it were there, it might mean that the box had nothing to do with it. The box was not obstructing her vision. It was because she was looking at the customer. The box is irrelevant in those circumstances.

MR TOOMEY: I think, with respect, your Honour, that we would say that it was a cumulation. If she is carrying the box, even if she was talking to a customer, one would expect if her forward vision was unobstructed the movement of the dog across, which undoubtedly occurred, would have impinged on her eyesight. We would say that it was a foreseeable cumulation of the fact that she had to do something else, that is, find out where the customer's car was and the fact that her forward vision was obstructed.

GLEESON CJ: Whichever way you look at it, you still have to answer the question, what did her employer do wrong?

MR TOOMEY: Your Honour, there are a number of things. There was evidence of available alternatives: the groceries could have been taken in bags which would not have obstructed her view and the owner of the store could clearly have taken steps to see that the dog was removed.

CALLINAN J: What if the pharmacist had refused to remove the dog?

MR TOOMEY: Your Honour, there was a power under the Dog Act - at that time the Dog Act then in force in New South Wales - - -

GLEESON CJ: Was there evidence about how many dogs there are around the street in Coleambally?

MR TOOMEY: There was evidence that they were not unknown, your Honour, as your Honour might expect. I think it was suggested that this dog was known to be a dog - - -

GLEESON CJ: There is a few dogs around the street in Wingen, Mr Toomey.

CALLINAN J: Does this regulation make it some kind of an offence to have a dog not on a lead or something like that?

MR TOOMEY: It gives the power to seize, your Honour.

CALLINAN J: Does it give the power to seize to anybody?

MR TOOMEY: To any person.

CALLINAN J: It might be a pretty risky thing with some dogs.

MR TOOMEY: This was an old golden labrador, your Honour. There was no risk of it biting you, I do not think.

GLEESON CJ: There are some people who own dangerous dogs, Mr Toomey, not necessarily 100 miles from here.

MR TOOMEY: Yes, your Honour, right. Section 10:

If, in a municipality or shire, a dog is found -

(a) in or on a public place; or

. . .

and not under the effective control of come competent person, the dog may be seized by a servant of the council in whose area the dog is found, by a member of the police force or by any other person.

Justice Ipp simply waived aside the suggestion that something should have been done about the dog by the employer as being utterly without foundation.

CALLINAN J: I asked that question, was it an offence to have a dog not on a chain? The reason why I ask it is because you might be in Modbury Triangle Shopping Centre territory then, that this is an unlawful act by a stranger, a punishable act.

MR TOOMEY: I think, your Honour, it was an offence to have an unregistered dog, to allow an unregistered dog in the street, but there was no suggestion this dog was not registered. I do not think it was an offence just to have it there but, effectively, what Justice Ipp said is, "What could the employer have done?" What the employer could have done, clearly, is he could have spoken to the pharmacist. If the pharmacist had not acted - and it is, really, highly unlikely that the pharmacist would not have acted if the neighbouring shop owner in a country town had said to him "Look, I am bit worried about my young female employee. That dog is always there where she has to carry boxes of groceries." It really is highly unlikely that Mr Buckley, who is dead, would not have said, "Oh, all right, I will do something about it." Had he not, then Mr Kelly could have gone to the council and said, "We want the dog seized."

GLEESON CJ: Thank you. We do not need to hear you, Mr Hislop.

The Court of Appeal accepted the existence and scope of the duty of care for which the applicant contended. It based its decision on the conclusion that in the facts and circumstances there was no breach of that duty. The reasons given by the Court of Appeal for that factual conclusion were cogent and compelling. The case raises no issue of law and there are insufficient prospects of success to warrant a grant of special leave to appeal. The application is refused with costs.

AT 11.28 AM THE MATTER WAS CONCLUDED